Bankey Lal Vs. Puran Mal - Court Judgment

LegalCrystal Citation

legalcrystal.com/457212

Subject

Limitation

Court

Allahabad

Decided On

Mar-16-1944

Reported in

AIR1944All197

Appellant

Bankey Lal

Respondent

Puran Mal

Excerpt: - - learned counsel for the defendant-respondent contends that the expression indul-talab is a well-known expression which is used in promissory notes and bonds and means 'on demand,'and that there is in justification for giving to that expression the meaning contended for by the applicants. i have come to the conclusion that the argument is not well-founded and cannot be accepted. 3. it cannot be denied, and is not denied, that it is well settled that whenever a bond or pronote is expressed as payable on demand, the performance of the obligation is due from the instant at which the obligation arises and that it is neither necessary for, nor incumbent on, the obligee to make a demand......kisi gist ke kul rupaya ek musht mae sood fi sadi ek rupaya mahawari he hisab se aj hi tarikh se indul-talab ada karenge.' it is common ground that no payment was ever made. the suit out of which this petition for revision has arisen was instituted on 24th november 1942. the plaintiffs alleged that neither ajodhya prasad nor the defendant pooran mai had ever paid anything. they sued for the recovery of the amounts of, the last four instalments mentioned above, that is, for a total sum of rs. 307, together with rs. 84-12-0 on account of interest. the claim, thus, was for the recovery of rs. 391-12-0. the plaintiffs claimed only the amounts of the last four instalments evidently on the footing that the amounts of the first two instalments had become barred by time under article 74,.....

Judgment:ORDER

Verma, J.

1. On 24th August 1938, one Ajodhya Prasad, deceased, and his son, Pooran Mai, who is the respondent before me, executed a bond in favour of Bankey Lal and Hira Lal, who are the plaintiffs-applicants in this revision, acknowlegding that a sum of Rs. 461 was due from them to Bankey Lal and Hira. Lal and promising to pay that sum without interest in the following six instalments:

There was a stipulation in the deed in the following words : 'Dar surat wada khilafi kisi gist ke kul rupaya ek musht mae sood fi sadi ek rupaya mahawari he hisab se aj hi tarikh se indul-talab ada karenge.' It is common ground that no payment was ever made. The suit out of which this petition for revision has arisen was instituted on 24th November 1942. The plaintiffs alleged that neither Ajodhya Prasad nor the defendant Pooran Mai had ever paid anything. They sued for the recovery of the amounts of, the last four instalments mentioned above, that is, for a total sum of Rs. 307, together with Rs. 84-12-0 on account of interest. The claim, thus, was for the recovery of Rs. 391-12-0. The plaintiffs claimed only the amounts of the last four instalments evidently on the footing that the amounts of the first two instalments had become barred by time under Article 74, Limitation Act, on the date on which the suit was brought. They alleged in para. 4 of the plaint that shortly before the first instalment fell due the obligors begged them to waive the stipulation that on default in the payment of any one of the instalments the defendants had to pay the whole amount (iltija ki kist ke chook jane par kul eh musht ki shart se muddavan gurez haren) and that the plaintiffs acceded to that request and waived their right to realise the whole amount in case of default (muddayan ne apna haq ba surat wada khilafi kul rupnya eh musht ka waive kar diya). It was further alleged in para. 4 of the plaint that the plaintiffs 'made a demand in the beginning of the month of JethSambat 1998.' The defendant denied the allegations of fact made in para. 4 of the plaint. It was pleaded by him that the claim was barred by the statute of limitation. The learned Judge of the Court of Small Causes, disbelieving the evidence produced by. the plaintiffs, held that the allegations made in para. 4 of the plaint were not established, in other words, that the alleged waiver and the alleged demand were not proved. He accepted the plea of limitation urged by the defendant, and, holding that the case was governed by Article 75, Limitation Act, dismissed the suit.

2. It has been urged before me on behalf of the plaintiffs applicants that the case was not governed by Article 75 because, upon a proper construction, the bond did not provide that, if default be made in payment of one or more instalments, the whole would become due. It has been argued that the expression 'indul-talab' which occurs in the passage quoted above should be interpreted to mean that an option was given to the creditor to demand payment of the whole amount if there was a default in the payment of any one of the instalments, and that thus the case was governed by the decision in Ajudhia v. Kunjal ('08) 30 All. 123. In support of the argument that the expression indul-talab should be interpreted in the manner contended for by the learned Counsel for the applicants, reliance has been placed on the decision of a learned Single Judge of the Madras High Court in Karunakaran v. Krishan ('13) 36 Mad. 66. The argument is that, the true meaning of the stipulation contained in the bond being as suggested by learned Counsel, the suit which, as already stated, was instituted on 24th November 1942, for the recovery of the instalment that fell due on 26th November 1939, and the subsequent instalments, was within time. Learned Counsel for the defendant-respondent contends that the expression indul-talab is a well-known expression which is used in promissory notes and bonds and means 'on demand,' and that there is in justification for giving to that expression the meaning contended for by the applicants. The argument of the respondent is that the case was governed either by Article 75 or by Article 59, Limitation Act. Omitting the words which are not necessary for our present purpose, the clause in question stands as follows : 'Dar surat wada hkilafi kisi qist he kul rupaya ek musht...indul talab ada karenge.' It is conceded by the applicants' learned Counsel that, if the expression indul-talab had not occurred in this sentence, it would have had to be held that the bond provided that, if default was made in the payment of any one of the instalments, the whole amount would become due and that the case would have been within Article 75. The question that arises for consideration, therefore, is whether the argument that the expression indul-talab must be construed as conferring an option on the creditors is correct. I have come to the conclusion that the argument is not well-founded and cannot be accepted. Even if I were to hold that the law was correctly laid down in Karunakaram v. Krishan ('13) 36 Mad. 66 the words there were 'on your demand.' I do not see any justification for giving a different meaning to the expression indul-talab from the one in which it is commonly used in bonds and promissory notes.

3. It cannot be denied, and is not denied, that it is well settled that whenever a bond or pronote is expressed as payable on demand, the performance of the obligation is due from the instant at which the obligation arises and that it is neither necessary for, nor incumbent on, the obligee to make a demand. Neither the debtor can say that he was not bound to pay until a demand had been made nor a creditor can claim to be entitled to control the running of time by not making a demand. I see no reason for holding that the expression indul-talab in the deed before me was intended to confer an option on the creditor and that it was used in the sense of Mahajan ho ihhtiyar hoga (the creditor will be at liberty) which was the stipulation in Ajudhia v. Kunjal ('08) 30 All. 123. There are two ways of looking at the bond in question; firstly, that although it was an instalment bond in its inception, the contract between the parties was that the moment there was a default in the payment of any one of the instalments the bond was to be deemed as one payable on demand in respect of the whole amount then due under the bond, and that the creditors were bound to sue for the whole amount then due within three years from the date of such default as required by Article 59; and secondly, that, there being nothing in the nature of an option in favour of the creditors, the whole amount became payable as soon an the first default took place and the creditors were bound to sue within three years from that date under Article 75. In either case, the cause of action for the recovery of the whole amount of the bond arose on 29th November 1938, when the first default occurred, and the suit, instituted as it was on 24th November 1942, was beyond time. The application for revision is dismissed with costs.